Roots of conflict between executive and judiciary

The short point here is that with Golaknath, the seeds of confrontation of the government with the judiciary had been sown, and later pronouncements only hardened attitudes.

Dr KK Paul | New Delhi | April 28, 2019 12:35 am

Law and Justice. (iStock image)

Nineteen sixty-seven was a landmark year in the political history of the country. Reflecting after almost 60 years, a chain of events unfolds which had a strong impact on the politics of the years after. Elections to the fourth Lok Sabha were held in the aftermath of the 1966 devaluation of the rupee, and perhaps, when the food crisis was at its worst.

The benefits of the green revolution were nowhere in sight as they would accrue only after 1969. The level of general dissatisfaction was manifest in the fact that the ruling Congress lost 70 seats in the Lok Sabha and at 283, came perilously close to the half-way mark. The gainer was Swatantra party, dominated by erstwhile rulers, and under the influence of the right wing. With almost 50 seats it ended up as the second largest party in Parliament.

Simultaneously Congress also lost power in seven States where it faced governments formed by opposition and fragile coalitions. This led to a power struggle within the party with the organisational wing trying to assert itself. In 1966 while promoting Mrs Indira Gandhi to the leadership, they had thought it to be only a stop gap arrangement, but things had changed. For the first time an election took place for the post of the CPP leader and though Mrs Gandhi won, Morarji Desai, the candidate of the organisational wing managed to get the support of 169 MPs.

As such he had to be accommodated and was made the Deputy Prime Minister. While the challenge for leadership had been managed, the government faced yet another crisis. In a hitherto little known and virtually nondescript matter, the Supreme Court had given its most hard-hitting judgement. In the Golaknath case, CJI Subba Rao led the majority view by 6 to 5 in stating that Parliament was not competent to amend the fundamental rights in the Constitution and that Article 368 only provided the procedure for amendment.

This was a severe blow to Parliament as well as the government. But CJI Subba Rao was getting ready for another one. In an extremely controversial move, about three months before his retirement and soon after the Golaknath judgement he resigned, only to announce his candidature for the post of President of India and to contest as the joint candidate of the opposition against Dr Zakir Hussain.

These moves had sown the seeds of a confrontation setting off a chain of events which had far-reaching consequences. This judgement had placed the government in a tight corner as it suddenly found itself ill-equipped to fulfil its political programmes which required constitutional amendments. Faced with challenges from within the party and in Parliament, besides those from opposition- led governments in several states, the Union government did not appear to inspire confidence.

This was to manifest in serious law and order problems in the entire country. This was also the period when Naxalism raised its head in West Bengal, where Chief Minister Ajoy Mukherjee had to go on a fast against his own Deputy CM, Jyoti Basu. The result was the decline of Calcutta and its hinterland as an industrial hub. Mrs Gandhi knew that in the prevailing situation, it was essential to have a left-of- Centre and pro-people orientation to policies.

Accordingly, came bank nationalisation in 1969. Again, there was stiff opposition but Morarji Desai was left with no option and had to resign. The Finance Secretary also had to be shifted to Ministry of Agriculture. Parliament was to meet from 21 July 1969 for the monsoon session but two days before that, the ordinance on Bank Nationalisation was promulgated on 19 July 1969, a Saturday. With nationalisation of commercial banks having deposits of over Rs 50 crore, Mrs Gandhi had once again assumed the initiative and occupied centre-stage.

This major step also helped her to widen her appeal and ultimately organise the defeat of the organisational candidate N. Sanjiva Reddy for the Presidency. But coming back to the main issue, immediately after the ordinance, a writ was filed in the Supreme Court, where it was heard by a Constitutional bench of eleven judges.

This was the second major case and a test for the government before the Supreme Court. Hackles were raised once again on either side as the government’s ordinance was pronounced invalid. Mrs Gandhi took it as an affront and gave a political twist to show that the big business was on one side and she was with the common man and was not being allowed to introduce reforms for the downtrodden.

It was only much later that Golaknath could be set aside. The opportunity came after Mrs Gandhi had won in 1971, when the 24th Constitutional amendment was passed, with the intention of nullifying the impact of Golaknath judgement. However, validity of the 24th Amendment was again challenged through the Kesavananda Bharti case, before a historic 13 judge bench, which heard the case for about six months giving a historic judgement in April 1973, validating the amendment.

The short point here is that with Golaknath, the seeds of confrontation of the government with the judiciary had been sown, and later pronouncements only hardened attitudes. In order to overcome the impediment to the bank nationalisation policy, a constitutional amendment (25th) was passed on 20 April 1972.

This (clause 2b and 2c) was later validated in Keshavananda Bharti. According to this, the jurisdiction of courts to determine the adequacy of compensation on acquisition of property was taken away. A new clause was added that no law which declared that it was giving effect to these principles in Clause (b) and (c) of Article 39, would be called in question on the ground of inconsistency with the fundamental rights.

By now Golaknath as well as bank nationalisation judgements had been corrected through Constitutional amendments. The next step in the pro-people and left-of- Centre agenda of Mrs Gandhi was to do away with privileges of rulers and ICS Officers. Prior to 15 August 1947, the rulers of states were Sovereign, though their sovereignty was subject to the paramountcy of the British Crown.

That paramountcy lapsed on 15 August 1947 as a result of the Indian Independence Act. Consequently, these rulers became absolute Sovereigns. After their merger with India the rulers of those Sates were left with no powers. They had only such rights and privileges as were recognised or created under the Covenants and those embodied in the Constitution.

The Government moved in the Lok Sabha on 2 September 1970, the Constitution (26th) Amendment Bill, 1970 to delete certain provisions of the Constitution relating to the guarantees given to the Rulers about their privy purses as well as privileges. That bill was passed in the Lok Sabha, but it failed to get the requisite majority in the Rajya Sabha.

The motion for consideration of the bill was rejected at about 4.30 p.m. on 5 September 1970. The same evening the Union Cabinet met and decided to advise the President to withdraw the recognition of rulers so that the privy purses and privileges guaranteed to them may be abolished. On the same night, the President purporting to act under Cl. (22) of Article 366 of the Constitution, signed at his camp in Hyderabad.

Instruments withdrawing recognition of all the rulers. After obtaining his signatures, the documents were flown back to Delhi the same night and the impugned orders issued on 6 September 1970. On the strength of these orders, the Government of India asserted that all rulers in India had been de-recognised and consequently none of them was entitled to any rights and privileges.

The Apex Court took up this matter, where a special bench of 11 judges was constituted for its hearing. Madhav Rao Scindia of Gwalior was the principal mover of the writ on 15 December 1970 to challenge the vires of the ordinance. The judgement pronounced by 10 judges read: “ In accordance with the opinion of the majority, the Petitions are allowed and writs will issue declaration that the orders made by the President on September 6, 1970, challenged here, were illegal and on that account inoperative and the petitioners will be entitled to all their pre-existing rights and privileges including the right to privy purses.”

The only dissenting judge was AN Ray, whose order was in favour of abolition of privy purses. According to him, “Recognition of Rulership is not a legal right. It is not a right to property. Privy Purse is not a legal right to property. There is no fundamental right to Privy Purse. There is no fundamental right to Rulership.” In fact, the judgement in the Privy Purses case provided the signal to Mrs. Gandhi to dissolve the fourth Lok Sabha and go in for a mid-term poll, which she won on a hugely populist platform.

Taking forward the reforms programme which had been hit by the Supreme Court, she got enacted the Constitution’s 26th Amendment on 28 Dec 1971 which nullified this judgement and omitted Articles 291, 362 and inserted Article 363A and amended 366 (22) withdrawing the recognition of Rulers of Princely States and abolishing their Privy Purses. Later through the 28th Constitutional amendment of 29 August 1972, privileges of ICS officers were also abolished.

Thus, it may be observed that in this confrontation, Parliament repeatedly trumped the judgments of the Supreme Court, delivered by no less than 11 judgebenches in each case. Finally, in April 1973, in the Kesavananda Bharti case, the 13 judges of the Supreme Court said that Golaknath was overruled, Parliament had the power of amendment, but it could not alter the basic structure of the Constitution.

This basic structure doctrine was conclusively settled in the Minerva Mills case. Soon after this judgement, at the retirement of the CJI Sikri, supersession of judges took place with AN Ray superseding three senior-most judges of the Supreme Court (JJ Shelat, Hegde and Grover). Incidentally, Ray was the only judge to support the Government in the Privy Purses case.

It is also of historical significance that between 1967 and 1975, the Constitution was amended on a record fourteen occasions. Even today, guiding the destiny of the nation by fulfilling the political programme of the party, lies at the core of politics of constitutional amendments; on the other hand besides upholding the public interest, courts have by and large stood for protecting the rights of the individual as enshrined in the Constitution.

(The writer is a former Governor of Meghalaya and Uttarakhand and a former Commissioner of Delhi Police)